Taylor V Rive Droit Music Ltd CA 4 Nov 2005

Case No: A3/2004/1995 A3/2004/2001 Neutral Citation Number: [2005] EWCA Civ 1300 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE CHANCERY DIVISION (MR JUSTICE LEWISON) HC02C 01010 Royal Courts of Justice Strand, London WC2 Friday, 04 November 2005 Before : LORD JUSTICE CHADWICK LORD JUSTICE LATHAM and LORD JUSTICE NEUBERGER − − − − − − − − − − − − − − − − − − − − − Between : MARK TAYLOR Claimant/Respondent − and − RIVE DROITE MUSIC LIMITED Defendant/Appellant − − − − − − − − − − − − − − − − − − − − − − − − − − − − − − − − − − − − − − − − − − Mr Andrew Sutcliffe QC & Mr Peter Ratcliffe (instructed by Davenport Lyons of 30 Old Burlington Street, London W1S 3NL) for the Appellant Mr Ian Mill QC and Miss Jane Mulcahy (instructed by Forbes Anderson of 16−18 Berners Street, London W1T 3LN) for the Respondent − − − − − − − − − − − − − − − − − − − − − Judgment (as Approved by the Court) Lord Justice Chadwick : 1. This appeal and cross−appeal are from the order made on 15 July 2004 by Mr Justice Lewison in proceedings brought by Mr Mark Taylor, a record producer and songwriter, against Rive Droite Music Limited ("RDM"), a music production and publishing company. As the judge put it at paragraph 2 of his judgment [2004] EWHC 1605 (Ch): "The main focus of the dispute between the parties is whether Mr Taylor was entitled to stop working for RDM in the circumstances in which he did". The underlying facts 2. The facts are fully set out by the judge in his lengthy and careful judgment. By way of introduction it is sufficient to extract and adopt passages from the following three paragraphs of that judgment: "1. Mark Taylor is a talented music producer and song writer. He has produced songs for world famous artistes, including Cher, Enrique Iglesias, Rod Stewart, Lionel Richie, Tina Turner and a host of other household names . In 1995 he entered into two agreements with Rive Droite Music Ltd . The first, which was oral, was a producer's agreement. The second, which was written, was a publishing agreement. The publishing agreement was renewed twice, latterly in 1998. At the end of November 2000 Mr Taylor stopped working for RDM. Since then he has worked for Brian Rawling Productions Ltd . That is a company principally owned by Mr Brian Rawling, but in which Mr Taylor also has a shareholding. ... 8. XIII Bis is a group of French companies set up by M. Laurent Dreux−Leblanc. The group has subsidiaries in many parts of the world. Its core business is the publishing, production, recording and distribution of music. Its head office is in Paris, where M. Dreux−Leblanc lives; and its central administration is conducted from there. In 1992 M. Dreux−Leblanc decided that it would be a good idea to establish a presence in England. RDM was established for that purpose. Mr Brian Rawling was recruited to head up RDM in England; but he reported to M. Dreux−Leblanc in Paris. In essence the idea was that RDM would establish a stable of song writers. Songs written for RDM would then be offered (or ‘pitched') to other record labels and artistes. If they liked the songs, then RDM would produce the tracks; in return for both a production fee and production and writers' royalties. 9. In early 1995 Mr Rawling came across Mr Taylor. Mr Taylor was very short of work at the time. But Mr Rawling was impressed; and decided to try to persuade M. Dreux−Leblanc to take him on. ." 3. By October 1995 Mr Taylor had reached agreement with RDM on the terms on which he would undertake production work. They also reached agreement on the terms of a publishing agreement. The terms of the publishing agreement were reduced to writing and signed on 1 December 1995. That agreement was for a term of two years. It was renewed (or replaced) by a second publishing agreement (in the same, or substantially the same, form) dated 1 December 1997. 4. By mid−1998 Mr Taylor and Mr Paul Barry - another songwriter engaged by RDM under a publishing agreement - had collaborated successfully on a number of songs, including the songs "All or Nothing", "Dove L'Amore", "Strong Enough" and "Runaway". Those four songs - recorded by the artiste "Cher" − were to be included in an album released in September 1998. At the same time Cher released a single "Believe" which had been produced by Mr Taylor. Both the album and the single achieved great success. By the end of October 1998 the single had reached the top of the charts in the United Kingdom - where it remained for the next seven weeks. As a result of the success of Cher's album (and, no doubt, the success of the single) Mr Taylor's reputation was established. Cher was impressed by his work and wanted him to write and produce further songs for her. 5. It was against that background of success that Mr Taylor and RDM entered into a third publishing agreement on or about 1 December 1998 - notwithstanding that the term of the second (1997) agreement still had one year to run. One of the principal issues in dispute before the judge was whether the term of the term of the third (1998) publishing agreement was two years (as Mr Taylor contended) or three years (as RDM contended). 6. On 6 November 2000 Mr Rawling gave notice terminating his employment with RDM with effect from 10 February 2001. On 28 November 2000 Mr Taylor sent a fax to M. Dreux−Leblanc "to clarify the situation regarding my publishing agreement dated 1st December 1998, which comes to an end this month". That assertion was refuted by M. Dreux−Leblanc in a lengthy reply faxed to Mr Taylor on 30 November 2000. 7. In early December 2000 Mr Taylor travelled to Miami with Mr Barry. While there they worked together on songs to be recorded by the artiste "Enrique Iglesias". On 6 December 2000 Mr Taylor sent a further fax to M. Dreux−Leblanc, giving notice of his intention to determine the production agreement with effect from 1 December 2000. Over the next month or so all the producers employed by RDM and most of the administrative staff left RDM. Most of them went to work for Mr Rawling at Brian Rawling Productions Limited ("BRP"). These proceedings 8. On 10 January 2001 RDM's solicitors sent Mr Taylor a letter before action. These proceedings were commenced some fifteen months later, on 18 April 2002, by the issue of a claim form by Mr Taylor. As originally served the particulars of claim sought a declaration that the term of the 1998 publishing agreement was two years, expiring on 30 November 2000, a declaration as to the basis on which RDM was required to account under that agreement (and under the two earlier publishing agreements) and accounts and inquiries. Subsequently, by amendment, there was added a claim for monies said to be due following an examination by the Royalty Compliance Organisation into RDM's records. 9. By its defence RDM put in issue the construction of the 1998 publishing agreement advanced on behalf of Mr Taylor and, in the alternative, sought (by way of counterclaim) rectification of the relevant clause so as to accord with its contention that the parties intended the term to be for three years. RDM sought damages (also by way of counterclaim) for alleged breaches of the production agreement - being failure to deliver certain projects ("the Projects") described in schedule 2 to the pleading (including, in particular, recordings by Enrique Iglesias); for infringement of copyright in that (it was said) Mr Taylor had authorised record companies to copy and issue to the public copies of his work on the Projects; and for unlawful interference with goods - being computer files relating to projects on which Mr Taylor had been engaged since the start of his relationship with RDM. By a subsequent amendment to its counterclaim (in the alternative to its primary claim that the term of the 1998 publishing agreement was three years) RDM sought damages for infringement of copyright in respect of two of the Iglesias songs ("Hero" and "Love to See You Cry") on the basis that Mr Taylor had acquired a writing interest in those songs by contributions which were adaptations of − or new compositions incorporating a substantial part of − compositions by Mr Barry. 10. The proceedings came before Mr Justice Lewison for trial in May and June 2004. He identified (at paragraph 5 of the judgment which he handed down on 6 July 2004) seven main issues which he needed to decide. Those were: (i) whether the 1998 publishing agreement was for a term of two years or three years (either on its true construction or following rectification); (ii) whether, under the terms of the production agreement, Mr Taylor was contractually obliged to work exclusively for RDM; (iii) what, if any, terms were to be implied into the production agreement; (iv) whether Mr Taylor diverted to BRP projects which should have come to RDM; (v) whether Mr Taylor had infringed RDM's copyright in the two Iglesias songs; (vi) whether RDM was in breach of the publishing agreement in failing to exploit a song "Follow Your Heart" written partly by Mr Taylor; and (vii) whether RDM had accounted to Mr Taylor on the correct basis. 11. The judge decided issues (i), (ii) and (vi) in favour of Mr Taylor; he decided issue (v) in favour of RDM ; he decided (in answer to issues (iii) and (iv)) that it was an implied term that, in respect of any project that Mr Taylor had agreed to carry out, he would not provide his services to anyone other than RDM (if RDM secured the project), that it was also an implied term that Mr Taylor would not do anything to prevent RDM from securing a project and that Mr Taylor was in breach of that implied term; and (in answer to issue (vii)) that RDM had not accounted on the correct basis.

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